Turner v. Chicago Housing Authority

• Decision Date: 26 June 1956
• Docket Number: Gen. No. 46748
• Citation: 136 N.E.2d 543,11 Ill.App.2d 160
• Parties: Marguerite Dight TURNER, Appellee, v. CHICAGO HOUSING AUTHORITY, a municipal corporation, Appellant.
• Court: United States Appellate Court of Illinois

Page 543

136 N.E.2d 543

11 Ill.App.2d 160

Marguerite Dight TURNER, Appellee, v. CHICAGO HOUSING AUTHORITY, a municipal corporation, Appellant.

Gen. No. 46748.

Appellate Court of Illinois, First District, Second Division.

June 26, 1956.

Eckert, Peterson & Lowry, Chicago, A. R. Peterson, Harold W. Huff, Herbert C. Loth, Jr., Chicago, of counsel, for appellant.

David Alswang and Schwartzberg & Barnett, Chicago, David Alswang, Chicago, of counsel, for appellee.

ROBSON, Judge.

This is an action by Marguerite Dight Turner, plaintiff, to recover damages for injuries caused from falling down a stairway allegedly due to the negligence of the defendant, Chicago Housing Authority, a municipal corporation, in the construction and maintenance of a stairway in the Ida B. Wells public housing project. The jury found for the plaintiff and awarded damages in the sum of $25,000. Defendant appeals from the trial court's denial of its motions for directed verdict, judgment notwithstanding the verdict and new trial.

Defendant's principal contention on appeal is that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict because plaintiff failed to make out a prima facie case of negligent construction and maintenance of the stairway by defendant. Defendant also contends that errors in the rulings on the evidence and the giving of instructions entitled it to a new trial.

As to defendant's first contention the evidence, viewed in a light most favorable to plaintiff, reveals that she was, on August 6, 1948, a household employee of a third floor tenant of the Ida B. Wells housing project, which was constructed and maintained by defendant. On that date, as she was descending the front stairway of the project on an errand for her employer, she fell down the steps landing on the small of her back. The plaintiff testified that after having stepped down a couple of steps the ball of her right foot was on the tread and a portion of her toe extended onto the metal nosing of the stair, and that as she reached for the next step with her left foot, both her feet slipped out from under her and she fell. She testified that the metal nosing on the stairs was 'worn and they were smooth, shiny, slippery,' and that there was no paint on the metal nosing in the walking area. Several of plaintiff's witnesses corroborated her testimony that the metal nosing was 'slippery' and 'unpainted.' Plaintiff, however, was the only witness to her fall. Neither the complaint nor the plaintiff's witnesses alleged or indicated any defect in the stairs other than the slippery nature of the one-half inch metal nosing.

Aside from the testimony of the plaintiff and other witnesses that the one-half inch metal nosing was 'slippery' and 'unpainted,' the plaintiff relied wholly on the testimony of William Harold Bishop, a witness produced as an expert, to establish defendant's negligence. Bishop has been in the business of designing, erecting and maintaining buildings, particularly apartment buildings, since 1921. His school training for this field consisted of an architectural course in high school and one year at the Armour Institute, where he studied general architectural education.

On direct examination, Bishop testified that he had made an inspection of the front stairway at the Ida B. Wells housing project at the request of plaintiff's attorney; that the stairway was of steel pan construction, which means the steel frame is preformed and after being placed in position concrete is poured into the steel tread pans, and that becomes the portion walked on; that he is familiar with and has used steel pan construction stairs; that he is familiar with the customary manner of construction of steps of steel pan construction in public housing or buildings without elevators, particularly with reference to the metal nosing, in Chicago prior to 1941; that in his opinion the stairway of steel pan construction at the Ida B. Wells project was not according to the accepted architectural and engineering standards prevalent in Chicago in 1941; that his opinion is based on the fact that no precaution was taken to prevent the slippery nosings; that the paint had been worn from the one-half inch metal nosing of the stairs in question making them shiny and slippery.

Bishop further testified that the accepted standard for public housing prior to 1941, with reference to the nosing in steel pan construction, was to use an abrasive material to prevent slipping. This opinion was based on the fact that the three other public housing projects constructed in Chicago prior to 1941 did use an abrasive material for the stair nosings. Bishop concluded his direct examination by testifying that the customary and accepted method of maintaining the one-half inch metal nosings on steps of steel pan construction in Chicago in 1948, the year of the accident, was to paint them to keep them from becoming slippery.

It is undisputed that there was no foreign matter on the stairs; that none of the stairs were broken, cracked, irregular, missing or loose; that no nails or strips of metal were protruding, and that the steps were not wet, icy or waxed. There was no allegation of inadequate lighting or improper handrails. It therefore appears that plaintiff based her entire case on testimony that the one-half inch metal nosing on the concrete treads deviated from the type of nosing used in other public housing projects in the Chicago area prior to 1941, and that nothing was done to prevent the nosing from being slippery. Did this evidence present a prima facie case of negligence?

While evidence of a deviation from customary practice is admissible and may be considered by the jury along with the other evidence in the case tending to indicate negligence, it is not, in itself, proof of negligence and cannot, standing alone, sustain a recovery. Peterson v. Feltenberger, 102 Pa.Super. 6, 156 A. 621. So, in the instant case, a showing that the construction of the stairs was not standard is not enough. It must be shown that the deviation from the standard resulted in an unreasonably dangerous and unsafe condition. Kelly v. Loft, Inc., 124 N.J.L. 185, 11 A.2d 58; Kahn v. Werbel, 4 N.J.Super. 184, 66 A.2d 559. There are no Illinois cases in point, but we believe the cases cited are sound in sustaining this reasoning.

Before deciding whether or not the evidence indicated that the alleged deviation resulted in a dangerous and unsafe condition, we feel that the evidence of deviation itself requires some discussion. On cross-examination the plaintiff's expert witness, Bishop, testified that the type of stairway construction and the one-half inch nosing used in the Ida B. Wells project was an accepted method of construction in the Chicago area in 1941 for elevator buildings; that this distinction is based on the fact that stairways are not often used in elevator buildings, and that stairways in elevator buildings serve primarily as an emergency means of exit; that, however, such stairs are used when people want to go up or down one or two floors.

It is common knowledge, and this court takes judicial notice of the fact, that the stairways in many elevator buildings, particularly large office buildings, are used as frequently and often more than the stairways in nonelevator buildings. Because of this fact we are unable to find any logical basis for the distinction that the witness Bishop contends is an accepted distinction in the trade. The existence or nonexistence of an elevator in a building has no logical relation to whether or not the stairs in that building are reasonably safe to people rightfully and properly using them.

The trial court limited the evidence of accepted stairway construction to that used in public housing in the Chicago area prior to 1941. This view unduly restricted the controlling question of the case, which is: 'Were the stairs in question reasonably safe at the time of the accident?' Overemphasis of narrow and unrealistic standards can lead to absurd results. Thus in stairway construction, if we were to follow plaintiff's theory, a different standard could be applied to a theater, library, school, department store, office building, public building, factory, et cetera. These narrow standards become even narrower by differentiating between the different types of buildings when they are with or without elevators. When we consider that escalators are now used in addition to stairs and elevators, we realize the absurdity of the standard contended for by plaintiff.

The human mechanics of walking up and down stairs does not vary because of the nature of the building or because there is or is not an elevator. Thus if a stairway in an elevator building, which is of the same construction as the stairway in the Ida B. Wells housing project, is reasonably safe for people to use, the natural implication is that the stairway in the Ida B. Wells housing projects is also reasonably safe. It therefore appears that Bishop's admissions on cross-examination, while not disproving the standard to which he testified, did effectively establish that the deviation here involved was not one which necessarily rendered the use of the stairs unreasonably dangerous.

In Marshall Field & Company v. LeBosky, 133 Ill.App. 316, this court said at page 323:

'We are unaware of any authorities and none is called to our attention where it has been held that the owner or occupant of a building must provide a certain kind of stairway for use of persons desiring to go up and down, or be held guilty of negligence. It is no more negligence per se to use one of several ordinary and familiar forms of construction than others. In the use of appliances or machinery the law does not require a master to furnish for employees such appliances as are of the best character or absolutely safe, but to use reasonable and ordinary care and diligence in that respect. [Illinois...